O'Bryan v. Allen

• Citation: 8 S.W. 225,95 Mo. 68
• Parties: O'Bryan et al. v. Allen et al., Appellants
• Decision Date: 07 May 1888
• Court: United States State Supreme Court of Missouri

8 S.W. 225

95 Mo. 68

O'Bryan et al. v. Allen et al., Appellants

Supreme Court of Missouri

May 7, 1888

Appeal from Cooper Circuit Court. -- Hon. E. L. Edwards, Judge.

Reversed and remanded.

J. R Walker and Douglas & Scudder for appellants.

(1) Mrs. Harriet G. O'Bryan was incompetent as a witness. Holman v. Bachus, 73 Mo. 49; Willis v Gammill, 67 Mo. 730; Moore v. Wingate, 53 Mo 398; Moore v. Moore, 51 Mo. 118. (2) Henry M. Thomson was not a competent witness. Dunifer v. Jecko, 87 Mo. 282; Bell v. Railroad, 86 Mo. 599; Wood v. Broadley, 76 Mo. 23; Joice v. Branson, 73 Mo. 28; Haerle v. Krehin, 65 Mo. 202; Paul v. Leavitt, 53 Mo. 595. (3) The petitions in partition were competent evidence. Anderson v. McPike, 86 Mo. 293; Dowzelot v. Rawlings, 58 Mo. 75. (4) The court erred in not permitting the witnesses to testify, who had been placed under the rule excluding the witnesses. Keith v. Wilson, 6 Mo. 435; Parker v. McWilliam, 6 Bing. 683; State v. Sparrow, 3 Murph. 487; State v. Brookshire, 2 Ala. 303. (5) The general reputation in the community, as to the ownership of the farm, was competent evidence. Gordon v. Ritenour, 87 Mo. 54; Conover v. Berdine, 69 Mo. 125; Dickerson v. Chrisman, 28 Mo. 134; Benoist v. Darby, 12 Mo. 196. (6) To establish a trust in lands, the evidence must be so cogent as to leave no room for doubt. Rogers v. Rogers, 87 Mo. 257; Modrell v. Riddle, 82 Mo. 31; Forrester v. Moore, 77 Mo. 651; Kennedy v. Kennedy, 57 Mo. 73; Ringo v. Richardson, 53 Mo. 385; Forrester v. Scoville, 51 Mo. 268; Woodford v. Stephens, 51 Mo. 443; Johnson v. Quarles, 46 Mo. 423. And the same rule prevails in cases of specific performance. Berry v. Hartzell, 91 Mo. 132. (7) The proof in this case consists of loose declarations of Henry Bell, deceased, and are entitled to but small weight. Modrell v. Riddle, 82 Mo. 31; Kennedy v. Kennedy, 57 Mo. 73; Ringo v. Richardson, 53 Mo. 385; Hugus v. Walker, 12 Pa. St. 173; Dragoo v. Dragoo, 50 Mich. 573. (8) To take a case out of the statute of frauds, nothing is to be considered as a part performance which does not put the party in such a condition that a failure to perform would be a fraud on him. Dickerson v. Chrisman, 28 Mo. 134; White v. Watkins, 23 Mo. 423; Chambers v. Lecompte, 9 Mo. 575; Lodge v. Leverton, 42 Tex. 18; 3 Pom. Eq. Jur., sec. 1409; 1 Story Eq. Jur. [9 Ed.] secs. 759, 761; Fry. on Spec. Perf. [2 Am. Ed.] sec. 388; Lester v. Foxcroft, 1 Lead. Cas. in Eq. [3 Am. Ed.] 723. (9) There was no change in the condition in life of Noah Bell. West v. Bundy, 78 Mo. 407; Sitton v. Shipp, 65 Mo. 297. (10) The evidence in this case is not sufficient to support the decree. Dragoo v. Dragoo, 50 Mich. 573; Wright v. Wright, 31 Mich. 380; Foward v. Armstead, 12 Ala. 124; Eckert v. Mace, 3 Pa. 364; Eason v. Eason, 61 Tex. 225; Waterman on Spec. Perf., sec. 285; Hugus v. Walker, 12 Pa. St. 173; Poorman v. Kilgore, 26 Pa. St. 365; Shellhammer v. Asbaugh, 83 Pa. St. 24; Ackerman v. Fisher, 57 Pa. St. 457; Moore v. Small, 19 Pa. St. 461; Jones v. Tyler, 6 Mich. 364.

Cosgrove & Johnston for respondents.

(1) The sole object of this suit was to have the dower of the widow of Noah Bell assigned. The prayer that the title should be vested in the heirs of Noah Bell was simply to have the record show to whom the land in controversy belonged -- to remove the obstacles existing in the way of the relief sought. There was no misjoinder of causes of action. McClurg v. Phillips, 49 Mo. 315; Grady v. McCorkle, 57 Mo. 172; State ex rel. v. Sappington, 64 Mo. 20; Hale v. Stuart, 76 Mo. 20; Savings Institution v. Collonious, 63 Mo. 290; Henderson v. Dickey, 50 Mo. 161; Devorse v. Snider, 60 Mo. 235; Dameron v. Jamison, 4 Mo.App. 299; McGlothlin, Adm'r, v. Hennery, 44 Mo. 350; 1 Story's Eq. Jur. [12 Ed.] sec. 624, and notes; Smith v. Smith, 1 Wins. (N. C.) No. 2 Eq. 30. (2) The plaintiff, Harriet G. O'Bryan, was a competent witness. She was not "one of the original parties to the contract, or cause of action, in issue and on trial." The parties to that contract were Noah D. Bell and Henry Bell, both now dead. This suit is between Harriet G. O'Bryan, as widow of Noah D. Bell, and the defendants as heirs of Henry Bell. Chapman v. Dougherty, 87 Mo. 617. She did not attempt "to testify to any admissions or conversations of her husband, whether made to herself or third persons." She was a competent witness as to the matter about which she testified. Moore v. Wingate, 35 Mo. 398; Ruck v. Ashbrook, 51 Mo. 539. (3) The defendant, Henry M. Thomson, was a competent witness. He had a substantial interest in the controversy as the husband of Clara D. Thomson, a co-defendant, who is an heir of Henry Bell and also of Noah Bell, and has an interest in said lands, in which her said husband by right of his marriage has also an interest. McKee v. Cottle, 6 Mo.App. 416; Steffen v. Bauer, 70 Mo. 399; Cooper v. Ord, 60 Mo. 420; Bledsue v. Simmons, 53 Mo. 305; Fugate v. Pierce, 49 Mo. 441; Wilson v. Garaghty, 70 Mo. 517; Kanaga v. Railroad, 76 Mo. 207; Stephens v. Hume, 25 Mo. 346; Steffen v. Bauer, 70 Mo. 405. Thomson is entitled to curtesy in his wife's interest in said land, although she may never have had actual possession thereof. Reaume v. Chambers, 22 Mo. 36; Stephens v. Hume, 25 Mo. 349. (4) The evidence in this case clearly proves all of the allegations contained in plaintiffs' petition, and entitles them to the relief asked. Anderson v. Shockley, 82 Mo. 250; West v. Bundy, 78 Mo. 407; Halsa v. Halsa, 8 Mo. 303; Peters v. Jones, 35 Iowa 512; Burkholder v. Ludlam, 30 Gratt. (Va.) 255; Hardesty v. Richardson, 44 Md. 617; Langston v. Bates, 84 Ill. 524; Story v. Black, 5 Montana, 26. The widow in suit for assignment of dower is not held to strict proof of her husband's title. Gentry v. Woodson, 10 Mo. 224; 1 Scribner on Dower, 237; 2 Ib. 199. The plaintiffs' case is made out with reasonable certainty which is all that is required. Any other degree of certainty in a case of this kind is unattainable. Neale v. Neale, 9 Wall. (U.S.) 1. (5) The removal of Noah Bell with his family from Mississippi, where he was located, and where his wife's family and friends resided, was a very great change in his condition, and was a sufficient consideration to support the promise of his father to give him the land in controversy. Halsa v. Halsa, 8 Mo. 303; West v. Bundy, 78 Mo. 407. (6) The trial court committed no error in refusing to allow defendants' witnesses, who had been excluded from the courtroom during the trial, and who had violated said rule, to testify. It was a matter of discretion with the court whether disobedient witnesses were examined or not. State v. Fitzsimmons, 30 Mo. 239; State v. Hughes, 71 Mo. 633; Greenl. on Evid., sec. 432. (7) The general reputation in the community as to the ownership of the farm in controversy was incompetent evidence, and the trial court did not err in refusing to permit witnesses to testify to same.

Black J. Ray, J., absent.

OPINION

Black, J.

This was a suit by Harriet O'Bryan and her present husband to have dower assigned in two hundred acres of land. The claim is, that Henry Bell made an oral gift of the land to his son, Noah D. Bell, the former husband of the plaintiff, Harriet. The three children of Noah D. Bell and the said Harriet are made defendants, but they do not make answer. The other defendants are the other heirs of Henry Bell, he being also dead when this suit was commenced. The court made a decree divesting the defendants, other than the three children of Noah D. Bell, of all title, and invested the same in these three children, and then caused dower to be assigned.

1. So far as the decree invests the title in these three children it is erroneous. They ask and claim no such relief. Indeed, the evidence offered, but excluded, shows that they are entitled to no such relief. This portion of the prayer of the petition should be disregarded. If the plaintiff should be entitled to dower, it is not essential that title should be decreed in the heirs of Noah D. Bell. She can have her dower assigned without any such a decree, and let the defendants settle the title between themselves, as they see fit, as they seem to be doing by an amicable partition suit.

2. The objection made by the defendants, that the plaintiff, Mrs. O'Bryan, was incompetent to testify in her own behalf, was properly overruled. She was not one of the original parties to the contract or cause of action on trial. The original parties to that contract were Henry Bell and his son Noah D. Bell, both of whom are dead. Though she is a married woman and her husband is a party to this suit, still she is the real party in interest, and may testify. Owen v. Brockschmidt, 54 Mo. 285. It is not claimed that she can testify as to conversations of her former husband, made to herself or third parties. Such conversations and admissions are to be excluded, if offered.

3. Objection was also made, by the defendants who filed answer to the evidence of Henry M. Thompson, one of the defendants, when called as a witness by the plaintiffs, on the ground that he was the husband of his co-defendant Clara. Mrs. Clara Thompson is a daughter of Noah D. Bell; and if this property belonged to her father, she inherited one-third, and if not, then she inherited one-ninth interest in this and other property from her grandfather; so that in any event she has an undivided interest in the land. If her husband has a substantial interest in the contest, then, he, too, is a competent witness. He has no interest in her real estate which he can convey by his individual deed; but he has the right to possess and enjoy the property, and this marital right will be defeated to the extent that the land is set off to the plaintiff for her life. We think he...